In this note we seek to answer the most common questions which have been asked of us by shareholders in Myer Holdings Limited (“Myer”) about this proceeding. The answers given below are therefore in very general terms. The answers are not given by way of, or in substitution for, legal, financial or any other sort of advice. They are not tailored in any way to any individual circumstances. If you need legal, financial or other advice about this class action, we strongly recommend that you speak to your solicitor, accountant or financial adviser.
What is a group proceeding and is it the same as a class action?
Class actions and group proceedings are really the same thing. They are different ways of describing legal proceedings whereby one or a small number of representative plaintiffs can take legal action on behalf of all persons who have similar claims. The Myer class action is a good example of such proceedings. Many shareholders in Myer (“the shareholders”) have essentially the same claims against Myer. The only difference between them is the amounts they have lost.
Could I be liable for costs?
No. Represented class members cannot be made liable for the costs of a class action. Only the named plaintiff can be liable for adverse costs orders. If the case is successful, the legal costs incurred in running the case will be recovered from the amount paid by Myer. No member of the represented class will be asked to pay anything by way of legal costs out of their own pocket.
If the case is unsuccessful, the litigation funder will pay all costs including those awarded to Myer.
What will I get if we win?
If the case is successful (meaning that group members’ rights are vindicated be either judgment or court-approved settlement), there will be an amount of money to be paid by Myer. It is not possible at this stage to estimate how much the amount of money may be. In due course, when the likely amount is better known, we will provide further information about what amount might ultimately be recovered. We expect that the amount recovered (less any costs of running the case which are not recouped from Myer and any fee payable to the litigation funder) will be shared pro-rata between all the members of the Myer class. In other words, all members of the class will likely receive the same number of cents in every dollar they have lost by reason of the wrongdoing alleged against Myer.
How long will the case take?
How long the case will take depends upon a number of variable factors which are presently unknown. We presently estimate the case will take at least 18-24 months to conclude. The case may take longer if the case goes to a fully contested court hearing at trial.
What will the legal fees be and who will pay them?
The litigation funder now pays for all legal costs plus disbursements (such as Counsels’ fees and witness expenses) and will pay any amounts which are ordered against the applicant by way of security for or payment of costs.
If the case is successful, then the professional costs of the proceeding (solicitors’ costs, barristers’ fees and the costs of expert witnesses, etc.) will be recovered from the total amount which is recovered from the defendants by judgment or settlement. You cannot be made liable for any costs of this class action.
Will there be a litigation funder involved in the case and what will their fee be?
The Applicant entered into a litigation funding agreement with Australian Funding Partners Limited (“AFPL”) prior to the commencement of this proceeding. Under that agreement AFPL has agreed to pay the Applicant’s costs of the proceeding. In exchange AFPL is entitled to a “funding commission” in the event the class action is successful.
The Applicant has applied to the Court for the approval of “Funding Terms” which provide that all group members will pay the same pro rata share of legal costs and a funding commission out of any amounts they receive in settlement or judgment (common fund application).
The Funding Terms provide that in the event that the Myer class action is successful at trial or if the Applicant’s and group members’ claims against Myer are the subject of a settlement approved by the Court, AFPL would be entitled to recover:
- an amount equal to the AFPL’s cost incurred in the funding of the bringing of this proceeding; and
- a funding commission being 25% (plus any applicable GST) of any Resolution Sum, or such other lower percentage of the Resolution Sum as the Court considers reasonable.
The term “Resolution Sum” refers to an amount paid by Myer to resolve the proceeding either pursuant to Court orders or settlement agreement. It is defined more completely in the Funding Terms.
A copy of the common fund application and the Funding Terms is available from https://myerclassaction.com.au.
While the Court has not yet determined the common fund application, you should take the common fund application and the arrangements proposed under the common fund application into consideration when choosing between the options set out in the Notice.
If you wish to make submissions concerning the common fund application, you must send a written notice to the Applicant’s solicitors setting out your submissions. You may then be required to attend the Federal Court in Melbourne at a later date when the application is to be heard. Your submissions should be delivered to Portfolio Law Pty Ltd before 4:00pm AEST on 13 April 2018.
The litigation funder now pays for all legal costs plus disbursements (such as Counsels’ fees and witness expenses) and will pay any amounts which are ordered against the applicant by way of security for or payment of costs. Only the applicant can be made liable to pay or give security for costs, not any other member of the Myer Class Action group.
How can I be sure that your legal fees are reasonable?
The legal fees which are charged (including all disbursements paid to barristers, witnesses etc.) are generally subject to a process known as taxation which is undertaken by the Federal Court of Australia which ensures that the fees charged are reasonable and properly incurred.
Who are you suing?
The applicant is suing Myer Holdings Limited (the company in which you owned shares at the relevant time).
Why are you suing Myer?
The case alleges a failure by Myer to adequately disclose to the ASX information which it knew or ought to have known concerning the need prior to 19 March 2015 for a significant downward revision to its forecast net profit after tax for the 2015 financial year and for engaging in misleading or deceptive conduct by making releases to the ASX and its shareholders on 11 September 2014 concerning the forecast net profit after tax for the 2015 financial year in breach of the Corporations Law.
How much are you claiming?
The applicant is claiming all of the losses which have been suffered by all affected shareholders. The losses will be the subject of expert evidence at the trial and will represent some part of the significant losses in Myer’s market capitalisation post-announcement.
How much of these losses do you think you will recover if you win?
The applicant is claiming all of the losses which have been suffered by all affected shareholders. The losses will be the subject of expert evidence at the trial and will represent some part of the significant losses in Myer’s market capitalisation post-announcement.
How do I contact you?
You can contact us by email at info@myerclassaction.com.au
Will you be writing to me personally?
We are presently unable to write to you unless either you provide us with your contact details or Myer grants us access to its shareholder register for use by us for this purpose. We intend to request from Myer access to the shareholder register for this purpose. In the meantime, it is much cheaper and quicker to make contact with you through this website and by email.
Who should I go to for legal or financial advice?
You should speak to your solicitor or financial adviser for any particular legal, accounting or financial advice you may need.
Further questions and their answers will be posted on this page as the class action progresses.